Frank Hoffman v. Hon. chandler/state , 231 Ariz. 362 ( 2013 )

SUPREME COURT OF ARIZONA
En Banc
FRANK HOFFMAN, ) Arizona Supreme Court
) No. CV-12-0149-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 12-0010
THE HONORABLE TERRY L. CHANDLER, )
JUDGE OF THE SUPERIOR COURT OF ) Pima County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Pima, ) No. CR20113674
)
Respondent Judge, )
)
THE STATE OF ARIZONA; TUCSON CITY ) O P I N I O N
PROSECUTOR'S OFFICE, )
)
Real Parties in Interest. )
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Terry L. Chandler, Judge
AFFIRMED
________________________________________________________________
Order of the Court of Appeals Division Two
Filed April 3, 2012
________________________________________________________________
MARY C. TREJO, TUCSON PUBLIC DEFENDER Tucson
By Kristina Julie Bohn, Deputy Public Defender
Attorney for Frank Hoffman
MICHAEL G. RANKIN, TUCSON CITY ATTORNEY Tucson
By Baird S. Greene, Deputy City Attorney
William F. Mills, Principal Assistant
Prosecuting City Attorney
Attorneys for State of Arizona and Tucson City Prosecutors
Office
________________________________________________________________
T I M M E R, Justice
¶1 Subsection (A)(3) of A.R.S. § 13-4033 authorizes a
defendant to appeal a post-judgment order that affects
substantial rights, while subsection (B) prohibits a defendant
in noncapital cases from directly appealing any judgment or
sentence entered pursuant to a plea agreement. We today hold
that subsection (B) bars a defendant from directly appealing a
contested post-judgment restitution order entered pursuant to a
plea agreement that contemplated payment of restitution up to a
capped amount. Any appellate review must be obtained through
post-conviction relief proceedings.
I.
¶2 The State charged Frank Hoffman with several offenses
stemming from his involvement in a traffic accident that injured
another person. Pursuant to a plea agreement, Hoffman pleaded
no contest to driving under the influence (“DUI”) and, among
other things, agreed to pay restitution up to $53,653.45. The
Tucson City Court adjudicated Hoffman guilty, imposed a term of
probation, and ordered him to pay fines, fees, and restitution
in an amount to be determined later, but not to exceed
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$53,653.45.
¶3 Approximately three months later, the court held a
contested restitution hearing and entered an order requiring
Hoffman to pay $40,933.45 in restitution. Hoffman appealed to
the superior court, which subsequently dismissed the appeal on
the State’s motion. Relying on A.R.S. § 13-4033(B) and Rule
17.1(e) of the Arizona Rules of Criminal Procedure, the court
ruled that Hoffman waived his right to directly appeal the
restitution order by entering into the plea agreement and could
challenge the order only through Rule 32 post-conviction relief
proceedings. Hoffman sought special action relief from the
court of appeals, which declined jurisdiction.
¶4 We granted review to clarify the scope of § 13-4033(B)
a purely legal issue of statewide importance. We have
jurisdiction pursuant to Article 6, Section 5(3) of the Arizona
Constitution and A.R.S. § 12-120.24.
II.
¶5 The Arizona Constitution guarantees defendants in
criminal prosecutions “the right to appeal in all cases.” Ariz.
Const. art. 2, § 24. Before 1992, a defendant could directly
appeal a judgment or sentence entered pursuant to a plea
agreement. A.R.S. § 13-4033 (1989). But the increasing number
of these appeals was straining our appellate justice system.
Ariz. State S., Fact Sheet for H.B. 2481, 40th Leg., 2d Reg.
3
Sess. (Mar. 19, 1992). Consequently, the legislature
amended § 13-4033 and, among other changes, added subsection
(B), which provides: “In noncapital cases a defendant may not
appeal from a judgment or sentence that is entered pursuant to a
plea agreement or an admission to a probation violation.” 1992
Ariz. Sess. Laws 779. The legislature, however, did not change
what is now subsection (A)(3), which permits a defendant to
appeal from “[a]n order made after judgment affecting the
substantial rights of the party.” § 13-4033(A)(3).
¶6 After the legislature added subsection (B), this Court
amended Rule 17.1(e) to provide that a defendant in a noncapital
case who pleads guilty or no contest “waives the right to have
the appellate courts review the proceedings by way of direct
appeal, and may seek review only by filing a petition for post-
conviction relief pursuant to Rule 32 and, if denied, a petition
for review.” Order Amending Rule 17.1, Arizona Rules of
Criminal Procedure (Apr. 7, 1992). We have since held that a
petition for post-conviction relief is “the only
constitutionally guaranteed appeal” after a defendant enters
into a plea agreement. State v. Smith, 184 Ariz. 456, 458, 910
P.2d 1, 3 (1996); see also State v. Regenold, 226 Ariz. 378, 379
¶ 5, 249 P.3d 337, 338 (2011) (“[Rule] 32.1 provides the review
process for defendants who plead guilty.”).
¶7 Hoffman argues § 13-4033(A)(3) authorizes his appeal
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from the restitution order as a post-judgment order affecting
his substantial rights. The city court entered a “judgment” by
adjudicating Hoffman guilty of DUI. See Ariz. R. Crim. P.
26.1(a) (defining “judgment” as including a court’s adjudication
of guilt upon a defendant’s plea). Read in isolation, § 13-
4033(A)(3) would authorize Hoffman to directly appeal the post-
judgment restitution order as it indisputably affected his
“substantial rights.” But we must “strive to construe a statute
and its subsections as a consistent and harmonious whole.”
State v. Wagstaff, 164 Ariz. 485, 491, 794 P.2d 118, 124 (1990).
Thus, the issue is whether the restitution order is part of
Hoffman’s “sentence” and thus not appealable under § 13-4033(B)
¶8 We interpret § 13-4033(B) to effect the legislature’s
intent, looking first to the language of the provision. Kent K.
v. Bobby M., 210 Ariz. 279, 283 ¶ 14, 110 P.3d 1013, 1017
(2005). If the terms are ambiguous, we employ secondary
principles of statutory interpretation. Id. We review issues
of statutory interpretation de novo. State v. Arellano, 213
Ariz. 474, 477 ¶ 9, 143 P.3d 1015, 1018 (2006).
¶9 The language of subsection (B) does not reflect
whether a restitution order contemplated by a plea agreement but
entered after entry of judgment is part of a “sentence,” and the
legislature has not defined the term in A.R.S. §§ 13-105, -4033,
or elsewhere. Several reasons, however, convince us that such
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an order is part of a “sentence” for purposes of subsection
§ 13-4033(B). First, considering a post-judgment restitution
order as part of a sentence furthers the legislative goal of
eliminating direct appeals involving plea agreements. A.R.S.
§ 13-104 (providing statutes “must be construed . . . to . . .
effect the objects of the law”); Yslava v. Hughes Aircraft Co.,
188 Ariz. 380, 385, 936 P.2d 1274, 1279 (1997) (stating courts
should interpret unclear statutes “to conform with general goals
expressed in the legislative history”). Before the 1992
amendment to § 13-4033, defendants who entered into plea
agreements commonly challenged restitution orders on appeal.
See, e.g., State v. Nosie, 150 Ariz. 498, 499, 724 P.2d 584, 585
(App. 1986); State v. O’Connor, 146 Ariz. 16, 17, 703 P.2d 563,
564 (App. 1985). Although the legislature was presumably aware
of such appeals when it sought to reduce the burden on appellate
courts, cf. Taylor v. Travelers Indem. Co. of Am., 198 Ariz.
310, 317 ¶ 21, 9 P.3d 1049, 1056 (2000) (assuming legislature’s
knowledge of case law and insurance coverage needs), it did not
expressly exclude restitution orders from the ambit of § 13-
4033(B)
¶10 Second, excluding a post-judgment restitution order
entered pursuant to a plea agreement from the reach of § 13-
4033(B) would create a hybrid system of appellate review. Under
Hoffman’s view of § 13-4033(B), a defendant who pleads guilty
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could seek appellate review of a contested post-judgment
restitution order on direct appeal but would have to pursue
review of remaining issues through Rule 32 proceedings. This
dual-track review would unnecessarily burden the appellate
justice system and could lead to inconsistent results. State v.
Estrada, 201 Ariz. 247, 250-51 ¶ 16, 34 P.3d 356, 359-60 (2001)
(stating court interprets and applies statute “in a way that
will avoid an untenable or irrational result”). Cf. State v.
Ovante, 231 Ariz. 180, 184 ¶ 10, 291 P.3d 974, 978 (2013)
(construing Rule 17.1(e) so as to avoid bifurcated appeals in
capital cases).
¶11 Third, the legislature mandates restitution when a
crime victim has suffered economic loss. A.R.S. § 13-603(C).
Because this mandatory provision applies when a defendant enters
into a plea agreement, and restitution is typically imposed at
the time of sentencing, State v. Holguin, 177 Ariz. 589, 591,
870 P.2d 407, 409 (App. 1993), the term “sentence” in § 13-
4033(B) is most reasonably construed to include a post-judgment
restitution order.
¶12 Hoffman points out that after the 1992 amendment to
§ 13-4033, appellate courts have continued to assume
jurisdiction over direct appeals of post-judgment orders by
defendants who had entered plea agreements. But with two
exceptions, see infra ¶¶ 13-14, none of the cases Hoffman cites
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concerned a challenge to an order entered as a direct
consequence of a plea agreement’s terms. See Regenold, 226
Ariz. at 380 ¶ 12, 249 P.3d at 339 (reviewing sentence imposed
as consequence of a contested probation violation); State v.
Ponsart, 224 Ariz. 518, 521-22 ¶¶ 2-12, 233 P.3d 631, 634-35
(App. 2010) (same); State v. Delgarito, 189 Ariz. 58, 59, 938
P.2d 107, 108 (App. 1997) (involving a challenged order
designating an offense as a felony although offense left
undesignated at time of guilty plea and disposition). Moreover,
since 1992, appellate courts have routinely dismissed appeals of
post-judgment orders that challenged plea agreement terms. See,
e.g., Fisher v. Kaufman, 201 Ariz. 500, 501 ¶¶ 5-6, 38 P.3d 38,
39 (App. 2001) (noting that § 13-4033(B) precludes direct appeal
of post-judgment order requiring defendant to continue sex
offender registration because registration was contemplated in
plea agreement); State v. Jimenez, 188 Ariz. 342, 344-45, 935
P.2d 920, 922-23 (App. 1996) (stating that § 13-4033(B)
prohibited pleading defendant from directly appealing denial of
motion to modify conditions of probation imposed at sentencing).
¶13 Hoffman cites two cases involving challenges to orders
entered as a direct consequence of plea agreements. In State v.
Foy, 176 Ariz. 166, 167, 859 P.2d 789, 790 (App. 1993), the
court of appeals reviewed a post-judgment restitution order
entered pursuant to a plea agreement. But because the court
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assumed jurisdiction without commenting on the impact of § 13-
4033(B), that decision is not persuasive with regard to the
statute’s meaning.
¶14 In State v. Unkefer, the court of appeals addressed
the propriety of an order authorizing the state and a victim to
record and enforce a restitution order twenty years after the
trial court had ordered the defendant to pay the restitution
amount pursuant to a plea agreement’s terms. 225 Ariz. 430, 432
¶¶ 3-5, 239 P.3d 749, 751 (App. 2010). In a footnote, without
explanation or citation to § 13-4033(B), the court assumed
jurisdiction pursuant to § 13-4033(A)(3). Id. at 433 ¶ 6 n.4,
239 P.3d at 752 n.4. As with Foy, because Unkefer did not
consider § 13-4033(B), it does not alter our interpretation of
that provision. To the extent Foy and Unkefer conflict with our
interpretation of § 13-4033 in circumstances like the one before
us, we disapprove those cases.
¶15 Hoffman additionally argues that because the state may
appeal a post-judgment restitution order that affects its
substantial rights or those of a victim, see A.R.S. § 13-
4032(4), it would be absurd to interpret § 13-4033(B) as
prohibiting a defendant from appealing the same order. We
disagree. Because the state cannot file a Rule 32 petition to
obtain appellate review, it is not inconsistent in this context
to authorize direct appeal for the state but deny it to
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defendants. Both parties are given a single route for appellate
review.
¶16 Hoffman further argues it would be meaningless for
§ 13-4033(A)(3) to authorize a direct appeal of a contested
restitution order entered after judgment only to have § 13-
4033(B) eliminate that right. Again, we disagree. Subsection
(A)(3) applies generally to all post-judgment orders affecting a
defendant’s substantial rights; subsection (B) provides an
exception when such orders are entered pursuant to plea
agreements. See State v. Baca, 187 Ariz. 61, 66, 926 P.2d 528,
533 (App. 1996) (holding that § 13-4033(B) “impliedly amended”
now-renumbered § 13-4033(A)(3)). In other words, when
subsection (B) applies, subsection (A) cannot be invoked to
authorize a direct appeal.
¶17 We reject Hoffman’s related contention that the
restitution order in this case was not entered “pursuant to a
plea agreement” because he contested the amount. Although
restitution was not precisely calculated in the plea agreement,
Hoffman agreed to pay restitution not to exceed a capped amount
and explicitly waived his right to pursue a direct appeal. See
State v. Phillips, 152 Ariz. 533, 535, 733 P.2d 1116, 1118
(1987) (holding that a defendant thoroughly understands the
consequences of an agreement to make restitution when plea
agreement caps the amount that may be ordered). Even though
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Hoffman contested the amount of restitution eventually entered,
because this amount did not exceed the cap, it was entered as a
direct consequence of the plea agreement, and § 13-4033(B)
therefore applied. Cf. Regenold, 226 Ariz. at 379 ¶ 8, 249 P.3d
at 338 (noting that when a plea agreement states a range of
sentences, the pleading defendant receives sentence “pursuant
to” the agreement when the sentence is ultimately imposed).
¶18 Finally, Hoffman argues that the grounds for relief
under Rule 32.1 might not encompass a challenge to a post-
judgment restitution order based on trial error that did not
deprive the defendant of constitutional rights. Therefore, he
contends, the legislature must have intended to permit direct
appeal of such orders pursuant to § 13-4033(A). We reject this
argument because its premise is flawed. As the State concedes,
Hoffman is entitled to challenge the restitution order through
Rule 32 proceedings because he has a constitutional right to
appellate review. Ariz. Const. art. 2, § 24; Smith, 184 Ariz.
at 458, 910 P.2d at 3 (observing that the “constitutional
guarantee of appellate review in all cases is effectuated for
pleading defendants” through Rule 32). We trust that courts
will broadly interpret Rule 32 to preserve the rights of
pleading defendants to appellate review.
III.
¶19 For the foregoing reasons, we hold that A.R.S. § 13-
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4033(B) bars a defendant from directly appealing a contested
post-judgment restitution order entered pursuant to a plea
agreement that contemplated payment of restitution and capped
the amount. In such situations, a pleading defendant must
vindicate the constitutionally guaranteed right of appellate
review through Rule 32 post-conviction relief proceedings. We
therefore affirm the superior court’s order dismissing Hoffman’s
appeal.
_______________________________________
Ann A. Scott Timmer, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Scott Bales, Vice Chief Justice
_____________________________________
A. John Pelander, Justice
_____________________________________
Robert M. Brutinel, Justice
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